Desai v. Mukasey

UMANG DESAI, PETITIONER,v.MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.

Petition to Review an Order of the Board of Immigration Appeals. No. A44-828-446.

The opinion of the court was delivered by: Flaum, Circuit Judge.

ARGUED NOVEMBER 30, 2007

Before EASTERBROOK, Chief Judge, and FLAUM and WILLIAMS, Circuit Judges.

Umang Desai was charged as a removable alien by the Department of Homeland Security ("DHS") because he was convicted of violating a law relating to a federal controlled substance. The offense at issue is an Illinois law that punishes individuals for distributing substances that substantially resemble controlled substances. Because we find that there is a sufficient connection between these Look-Alike Substances and actual controlled substances, we deny Desai's petition for review.

I. Background

Umang Desai is a native and citizen of the United Kingdom. He entered the United States as a lawful permanent resident on June 8, 1995, at the age of fourteen. He is unmarried and worked for a contractor at the U.S. General Services Administration in its information technology division, where he had been for six years. Returning from a trip overseas on June 23, 2004, he arrived at Boston International Airport and sought admission as a lawful permanent resident. Desai was not admitted, and DHS placed him in removal proceedings. On November 16, 2004, DHS charged him as a removable alien pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II) based on a previous conviction for violating a law relating to a controlled substance. DHS also charged that he had been convicted of a crime involving moral turpitude.

The facts surrounding Desai's underlying offense are not at issue in this matter, but for completeness, we recite them here.*fn1 One night in the autumn of 2001, Desai met a woman at a nightclub. What Desai did not know was that she happened to be an undercover police officer. Earlier that day, someone gave Desai chocolates which were purported to contain the hallucinogenic drug Psilocybin, more commonly referred to as "shrooms." Back at the nightclub, Desai, who was taken with this woman, offered her the chocolates for free, but she paid him 20 dollars for them and asked if he could get her more. Desai stated that he was not involved in drug trafficking, but gave her his number anyway in the hopes of pursuing a romantic relationship. Some time later, the officer called Desai asking for drugs, but he told her that he could not help her out. He did, however, direct her to an individual named Wayne who could perhaps get her drugs, though he never arranged a meeting between the two.

On March 6, 2002, Desai was charged with Unlawful Delivery of a Look-Alike Substance in violation of Illinois law, 720 ILCS 570/404(b). He pled guilty to this class 3 felony and received probation. Two and a half years later, as we detailed above, DHS charged him with removability. He subsequently appeared before an immigration judge on January 25, 2005. Based on the charge and his plea to the Look-Alike Substance violation, the Immigration Judge ("IJ") ruled that Desai's conviction was a violation of a law "relating to a controlled substance" and that it was a crime involving moral turpitude. Instead of immediately having him removed, the IJ granted Desai a continuance to file a motion to vacate his criminal conviction with the Illinois state court. The Illinois court ultimately denied this motion, and Desai again appeared before the IJ who issued his decision. Based on his findings, the IJ determined that Desai was removable as charged.

Desai then appealed this decision to the Board of Immigration Appeals ("BIA"), arguing that his conviction did not concern controlled substances as defined by the federal Controlled Substances Act ("CSA"), and that his conviction did not constitute a crime involving moral turpitude. The BIA issued its decision on March 20, 2007. It concluded that Desai's underlying offense did not qualify as a crime involving moral turpitude, but that it was an infraction of state law that related to a controlled substance as set forth in § 1182(a)(2)(A)(i)(II), thereby classifying him as a removable alien.

II. Discussion

Desai now raises the same issue before this Court: whether his conviction for knowingly distributing a Look-Alike Substance was properly classified as a violation of a state law relating to a controlled substance. What is key in this case is the language of § 1182(a)(2)(A)(i)(II), which states:

Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21 [the Controlled Substances Act]), is inadmissible.

Desai submits that the text of this statute indicates that the underlying offense must be one that is related to a controlled substance as defined by the federal Controlled Substances Act. Although the CSA defines Psilocybin as a controlled substance, Desai did not actually distribute Psilocybin, but rather a substance that was a Psilocybin look-alike. Nothing in the drug schedules contained in the CSA ...

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